Logo Logo
Cookiebot

 

The General Data Protection Regulation (GDPR) and the ePrivacy Directive (ePR) affect how you as a website owner may use cookies and online tracking of visitors from the EU.

 

Try our free compliance test to check if your website’s use of cookies and online tracking is GDPR/ePR compliant.

The EU law on the handling of personal data, The General Data Protection Regulation, is often referred to as GDPR.

How does the GDPR affect your cookies and online tracking? How do you comply? And how does it affect your cookie policy and your cookie consent?

In this article, we give a comprehensive introduction to the GDPR and a hands-on guide as to what the new rules mean for you and your website.

GDPR and cookies


The GDPR is a set of EU regulations that represent the most significant initiative on data protection in 20 years.

The purpose is to protect “natural persons with regard to the processing of personal data and on the free movement of such data”, e.g. the website user.

Cookies are mentioned once in the 88 pages long regulation. However, those few lines have a significant impact on the compliance of cookies:

(30): “Natural persons may be associated with online identifiers […] such as internet protocol addresses, cookie identifiers or other identifiers […]. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them.”

In other words: when cookies can identify an individual, it is considered personal data.

What’s the deal with cookies anyway?

Cookies are small files that are automatically dropped on your computer as you browse the web. In and of themselves they are harmless bits of text that are locally stored and can easily be viewed and deleted.

But cookies can give a great deal of insight into your activity and preferences, and can be used to identify you without your explicit consent.

This represents a major breach from a legal point of view, and as data technologies grow more and more sophisticated, your privacy as a user is increasingly compromised.

Often, the cookies don’t even origin from the website you are visiting, but from third parties that track you for marketing purposes. All of which is going on “behind the scenes”.

While not all cookies are used in a way that could identify users, the majority (and the most useful ones to the website owners) are, and will therefore be subject to the GDPR.

Cookies for analytics, advertising and functional services, such as survey and chat tools, are all examples of cookies that can identify users.

The problem with cookies is both one of privacy - what is being registered? - and one of transparency - who is tracking you, for what purpose, where does the data go, and for how long does it stay?

Please accept marketing-cookies to watch this video.

Requirements: How do you ensure that your website and cookies is compliant with the GDPR?


As a website owner, taking measures to comply means going through your data processes and making sure that the personal data is handled according to the new regulations.

See also the infographic page by the EU: Data protection: Better rules for small business

The General Data Protection Regulation regards e.g. a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address as personal data.

If your website or organization processes data that is (a) directly personal, or (b) can be combined or singled out to identify an individual, then it must be revised to meet the requirements.

Map and evaluate the sensitive data in your organization, go through your security policies and make sure that the data is secure.

The two primary aspects to be aware of are:

Adjusting your cookie policy and your cookie consent is a significant part of this process.

What features should be present in a GDPR-compliant cookie consent?

One of the most tangible requirements of the GDPR is in the definition of what constitutes a proper cookie consent, meaning, that the consent has to be:

Furthermore,

What is a GDPR-compliant cookie notice?

The above requirements renders most of the cookie notifications used prior to the implementation of the GDPR obsolete.

For instance, implied consent and consent given simply by visiting a site is not enough.

The same goes for pop-ups and banners stating ‘By using this site, you accept cookies’.

A simple ok button for accepting cookies is also not sufficient.

For example, this will not do:

Example of a GDPR compliant cookie consent banner

Here is Cookiebot’s own GDPR and ePrivacy compliant notice asking for consent to set cookies:

It complies with the regulations, because of the following:

How do I make my cookie policy compliant with the GDPR?


The General Data Protection Regulation means that you will have to revise your cookie policy, so that it is in accordance with the regulations.

The GDPR and the EU ePrivacy Directive requires prior, informed consent of your site users, and the GDPR requires you to document each consent.

At the same time you must be able to account for what user data you share with embedded third-party services on your website and where in the world the user data is sent to.

A GDPR- and ePrivacy cookie policy must comply with the following requirements:

Transparent cookie policy

A compliant cookie policy must give the user a clear and accurate picture of how cookies are used on the website at any time. It is an actual requirement, that the cookie policy is written in a plain and understandable language. 

Overview and accountability for cookies on your website

You can be subjected to controls and be required to account exhaustively for the data processes that are going on in connection to your website.

This is easier said than done, as most websites have a large number of third-party cookies flowing through their system.

Consent requested by means of an affirmative action

The biggest change for cookie and online tracking in regard to the GDPR is that consent must be given by a clear affirmative action.

EU citizens have grown accustomed - albeit probably slightly annoyed - to the banners on all websites, stating the use of cookies, sometimes asking you to check the ok button, but giving no true choice.

With the regulations, this is not sufficient. The consent has to be given as an affirmative, positive action, and rejecting cookies must be an actual option.

Possibility to withdraw the consent at any time

The user must have the power to withdraw his or her consent.

It is therefore important to make sure that users have access to their current consent state at all times and can change the settings or withdraw their consent entirely.

Renewal of consent

Every 12 months, the consent should be renewed upon the user’s first visit to the site.

User friendly, no-nonsense dialogue

A challenge posed by the GDPR is that on the one hand, the use of cookies should be transparent and the users be given insight into how their data is being used.

On the other hand, though, the communication should be clear and easy to understand in order for the user to have a true choice.

Prior consent

With the GDPR and the ePrivacy Directive, the user consent must be given prior to the setting of the cookies. In the GDPR, you need prior consent to setting cookies that track personal data, whereas the ePrivacy Directive is even more far reaching, and requires that you get consent for setting all but the strictly necessary cookies.

Consents must be recorded as evidence

All consents must be securely stored so that they can be used as evidence in case of control.

Can I use a cookie policy template?


There exists numerous services on the internet that provide templates or generators for your website’s cookie policy. Just google “cookie policy template”, and you will find quite a few to choose from.

Be careful, however. We recommend not using templates and generators, because it is a GDPR requirement, that the information about the cookies and tracking should be specific and accurate.

Firstly, all websites are different, and secondly, cookies can change without you even noticing, especially if you make use of third parties such as embedded content, ads, or analytics tools.

With Cookiebot, you may publish the report from the monthly scan of your website as an integrated part of your cookie policy or privacy policy.

This way, the information you provide to your users about the cookies in use on your site is accurate and precise at all times.

How to easily make your cookies and online tracking GDPR and ePrivacy compliant


To meet the requirements, you can either build your own consent setup based on the GDPR. Or you can sign up to Cookiebot, a fully GDPR compliant cookie and online tracking solutions.

Cookiebot integrates the cookie policy with the monitoring of the cookie activity on your website, thereby ensuring that the policy is updated and truthful at all times.

A monthly report is generated about the cookies and data processing activity on the website, ensuring that the owner is in control at all times.

User consent is requested by means of a comprehensible banner, where the users can easily opt in and out of the various types of cookies.

The users can at any time access the consent setup and edit or withdraw their consent.

Every twelve months, the consent is automatically renewed upon the user’s first visit to the website.

The communication in the consent banner is user friendly and no-nonsense, offering true transparency but at the same time avoiding information overload.

The consent is requested prior to the setting of the cookies, except for the strictly necessary and therefore also legal ones.

All consents are automatically collected through a secured connection and stored as strongly encrypted keys.

GDPR and types of tracking cookies


On the overall, there exists four different types of cookies, depending on their duration and on their origin.

The GDPR affects all four types, and the origin and duration of the cookies must be presented for the user to accept in an affirmative and informed manner.

Session cookies and the GDPR

These cookies are temporary and expire once you leave the site. Session cookies are mainly used by webshops to hold your items in the basket while you are shopping online.

Permanent cookies and the GDPR

Permanent cookies may stay on your disk for a long time after the session is ended.

By law, they should be deleted every 12 months at least, but a cookie might stay on the disk forever.

These cookies may hold data such as login details, contact information and account numbers, so that you don’t have to type them in every time you use the site.

First-party cookies and the GDPR

First-party cookies are issued from the website you have accessed. These cookies often serve to give memory to the website about your data and preferences.

Third-party cookies and the GDPR

Third-party cookies are cookies that are set by a website other than the one you are on.

The aim of third-party cookies is often to collect certain information to carry out various research into behaviour, demographics and not least for targeted marketing etc.

What is the GDPR?


The General Data Protection Regulation (GDPR) is an EU-wide legislation that regulates - among other things - how websites handle personal data.

It is the most significant initiative on data protection in 20 years and has major implications for any organization in the world, serving individuals from the European Union.

To give people control over how their data is used and to protect "fundamental rights and freedoms of natural persons", the regulation sets out strict requirements on data handling procedures, transparency, documentation and user consent.

As a data controller, any organization must keep record of and monitor personal data processing activities.

This includes personal data handled within the organization, but also by third parties - so-called data processors.

Data processors can be anything from Software-as-a-Service providers to embedded third party services, tracking and profiling visitors on the organization’s website.

Both data controllers and processors must be able to account for what kind of data is being processed, the purpose of the processing and to which countries and third parties the data is transmitted.

Data may only transfer to other GDPR compliant organizations, or those within jurisdictions deemed 'adequate'.

No processing of sensitive personal data is allowed without a person’s explicit consent. For non-sensitive data, implied consent will do.

In either case the consent must be freely given on basis of clear and specific information about data types and purpose – and always before any processing takes place, also known as ‘prior’ consent.

All consents must be recorded as evidence that consent has been given.

Individuals now have the "right of data portability", the "right of data access" along with the "right to be forgotten" and must be able to withdraw their consent whenever they want.

In such case the data controller must delete the individual’s personal data if it's no longer necessary to the purpose for which it was collected.

In case of a data breach, the company must be able to notify data protection authorities and affected individuals within 72 hours.

Furthermore, GDPR imposes an obligation on public authorities, organizations with more than 250 employees and companies processing sensitive personal data at a large scale to employ or train a data protection officer (DPO).

The DPO must take measures to ensure GDPR compliance throughout the organization.

In relation to Brexit, the UK government plans to implement equivalent legislation that will largely follow the GDPR.

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance)

What is the GDPR-definition of personal data?

In the General Data Protection Regulation, the data to be protected is defined as follows (our italics):

(26): The principles of data protection should apply to any information concerning an identified or identifiable natural person.

Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person.

To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly.

To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments.

The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable.

This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes.

GDPR enforcement date: 25th of May 2018

An EU legislation of this size and importance is the result of a lengthy process.

In January 2012, the European Commission proposed a comprehensive reform of the data protection rules from 1995, (the 95/46/EC DIRECTIVE), bringing Europe up to date with the digital age.

On 4 May 2016, the official texts of the Regulation and the Directive were published in the EU Official Journal in all the official languages.

The regulation was enforced on 25 May 2018.

Since this date, organizations who fail to meet the requirements or document their efforts to comply risk penalties of up to €20 million or 4% of the company’s global annual turnover of the previous financial year, whichever is higher.

Resources


The GDPR
What the EU’s General Data Protection Regulation means for website compliance
How do you make your website gdpr compliant and what is the general data protection regulation anyway?
“6 steps to GDPR compliance” in Information Age Digital Edition
Informative blogpost on GDPR-consent
How the GDPR affect cookie policies
GDPR: When do you need to seek consent
Data protection - Better rules for small business
2018 reform of EU data protection rules
Video: GDPR in 97 seconds

Make your website’s use of cookies and online tracking GDPR/ePR compliant today

Try for free